Honor a congressional subpoena to appear at President Trump’s (presumably eventual) Senate impeachment trial? Joe Biden, still the odds-on favorite to be the Democrats’ standard-bearer in the 2020 election, scoffed at the very idea — No way!
The former vice president’s knee-jerk obstinacy illuminates — we should say, provides even more illumination of — the patent farce that is the second article of impeachment passed by the House on a strict party-line vote: the accusation that the president has obstructed Congress. As we saw in a committee hearing, featuring the spectacle of staffers questioning staffers with no actual fact witnesses in sight, Democrats have no problem when Democrats blow off congressional demands for information. “Obstruction” is a one-way street.
Trump regards the impeachment inquiry as a partisan witch hunt, just the latest phase of the Democrats’ project to remove him, which began even before his term started. He certainly has a point . . . although that is not a good reason to give his opponents fuel for the project, as he did by pressuring Ukraine to investigate Biden. That is the allegation in the first article of impeachment. Under the circumstances, I believe it falls well short of the egregious misconduct for which impeachment should be reserved; it was, nevertheless, a foolish thing for the president to do.
Let’s focus, though, on the second impeachment article, obstruction of Congress.
The president directed his underlings and executive branch components not to comply with congressional demands for information. To be clear, Congress has undeniable constitutional authority, broad in scope, to conduct oversight of the executive branch. The president, with all the authority of a peer branch of government, has extensive privileges of confidentiality, rooted in Article II, particularly when it comes to communications with his staff and high executive officials. Congress, however, is empowered to probe, especially when its concern is presidential malfeasance, or the activities of executive branch agencies Congress has created — such agencies, after all, are led by officers subject to Senate confirmation, and Congress both underwrites them with taxpayer funds and limits their operations by statute.
Consequently, President Trump has legitimate authority to defy congressional demands for information, but that authority is not limitless.
Notice that, to this point, we have not mentioned the courts. Squabbles between the political branches are, naturally, political in nature. The Framers did not intend that they be resolved by the courts. They are resolved by compromise, accommodation, and reprisals by the elected officials who answer to the public and thus have a powerful motivation to act reasonably.
Democratic-controlled congressional committees used information demands coupled with public political pressure (intensified by their media allies) in an effort to induce administration compliance. The president, however, had a strong counterpoint: Congress was claiming to conduct an impeachment inquiry while refusing to vote to authorize such an inquiry — a nakedly political strategy to attempt to protect nearly three dozen Democrats who hold seats in Trump-friendly districts where impeachment is unpopular (those seats being vital to maintaining the majority).
Democrats were deceptively branding their investigation an “impeachment inquiry” while actually conducting it under the ordinary oversight authority of six committees (led by the Intelligence and Judiciary Committees). While his responsive rhetoric bristled with Trumpian overkill, the president’s strategy was sensible: Deny cooperation at least until Democrats took a vote to approve the impeachment inquiry they claimed to be conducting. The Democrats finally voted at the end of October. Trump, however, continued to be defiant when the resolution approving the inquiry failed to provide him basic due-process protections that had been extended in prior presidential impeachments, and when the committees held palpably partisan hearings in which he was effectively denied the right to present a defense.
In sum, this was political wrangling. High profile, to be sure, this being only the fourth substantial effort to impeach a president in American history, but political nonetheless, and thus unfit for judicial intervention. The Constitution arms both political branches with arsenals to battle it out, so prudent judges often demur when asked to intervene. In modern times, though, our litigious society has lost sight of the fact that the principal check on the political branches is supposed to be we the people, through the ballot box, not the unaccountable courts. Both Congress and presidents have become quicker to resort to the judges when they think doing so may sway the court of public opinion, and many judges are all too willing to jump into the political fray.
That’s what has happened. On Friday, in fact, the D.C. Circuit court of appeals is scheduled to hear a pair of resulting cases: one triggered by the House Judiciary Committee’s demand that the administration disclose grand jury material from the Mueller probe, said to be vital to the impeachment inquiry; the other by the same committee’s attempt to compel testimony from former White House counsel Don McGahn.
Meantime, several weeks ago, the House issued a subpoena for Charles Kupperman, Trump’s former deputy national security adviser. Kupperman filed a lawsuit to block the subpoena but said he would testify if the court ruled that Congress’s demand for his information overcame any privilege claims. John Bolton, formerly Trump’s national security adviser and Kupperman’s boss, signaled that he would take the same position. So did Mick Mulvaney, the president’s acting chief of staff and budget director.
In a transparently tactical counter-measure, the House vacated the Kupperman subpoena and persuaded another judge to dismiss his case as moot. In effect, Democrats calculated that it was not worth risking an embarrassing loss in court or a drawn-out litigation that would extend the House inquiry into the 2020 campaign season. Instead, they could stomp their feet about Trump’s obstruction and summarily impeach him over it. So suddenly, the testimony of top presidential aides, which we were previously told was critical, turned out not to be so critical — just as Democrats once claimed the so-called whistleblower’s testimony was critical, but now accuse the president and his supporters of endangering the man’s life by seeking his testimony (the fact of the whistleblower’s coordination with Intelligence Committee Chairman Adam Schiff’s staff having inconveniently surfaced in the interim).
With that obstruction charge in mind, though, consider this amazing fact:
The court challenges involving the Mueller grand jury materials and McGahn’s testimony were brought by the House. The same House that impeached President Trump when current and former administration officials sought to litigate non-disclosure and executive privilege issues, has itself gone to court to litigate non-disclosure and executive privilege issues. That is, when House Democrats seek judicial intervention, we’re supposed to see that as vindication of the rule of law. When the Trump administration seeks judicial intervention, that’s to be seen as an impeachable offense.
The hypocrisy is breathtaking, but even worse is the Democrats’ reckless trivialization of impeachment.
The Framers were very worried about potential abuses of executive power. They were also quite concerned, though, about what Hamilton described (in Federalist No. 73) as “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.” They agitated over the possibility that the impeachment power would be abused for partisan ends, invoked for frivolous reasons.
The Democrat-controlled House’s impeachment for obstruction is both partisan and frivolous. Of course a president should not thwart legitimate congressional inquiries. Neither, however, should Congress trample on the president’s legitimate confidentiality privileges — just as the executive branch’s sweeping investigative powers must not be exploited to intrude on lawmakers’ communications with their staffers. If the government is to function well, each political branch must respect the other’s need for frank consultations. The built-in tension between the imperatives of accountability and confidentiality is obvious . . . which is why inter-branch disputes are common, and why they nearly always get worked out in negotiations.
On this score, it must be noted that the Trump administration has not typically been stingy. White House counsel McGahn and numerous other administration officials were made available to Special Counsel Mueller, even though the president could have claimed privilege. When Mueller’s report was completed, Attorney General Bill Barr made nearly all of it available to Congress and the public, even though redactions based on privilege claims could have been justified. (The Justice Department’s withholding of a small amount of grand jury materials is driven by D.C. Circuit precedent, which makes disclosure outside the governing rule illegal — a rule prescribed by Congress, which House Democrats, tellingly, did not even attempt to amend before seeking court intervention.)
Impeachment is our system’s nuclear option. We want our presidents to be elected democratically and to serve out their terms, with impeachment reserved for outrageous abuses of power that threaten our constitutional framework or our security. Could a president’s outright refusal to cooperate with Congress reach that level of malfeasance? Sure it could. But there are many intermediate steps before that happens.
Congress could have negotiated in good faith. If the administration had remained obstinate, it could have held officials who defied subpoenas in contempt. If officials had sought to litigate executive privilege, Congress could have opposed them in court. While it is true that the Article I branch has its own powers for securing the Article II branch’s compliance and need not resort to the Article III branch for help, it is a ridiculous overreaction for Congress to impeach over the executive branch’s attempt to litigate — especially when Congress is simultaneously filing its own lawsuits against the administration. If Congress had litigated and won, the public would have been more supportive of threats to impeach over noncompliance; the president would have looked like he was hiding corruption rather than protecting executive privilege. And if the administration had then remained obstinate, Congress might have considered impeaching one or more non-elected executive officials who continued to defy subpoenas — commencing such actions would have demonstrated that Congress was being diligent yet refraining from the drastic step of impeaching a president until reasonable alternatives were exhausted.
To the contrary, Democrats said reasonable alternatives be damned. The House made the reckless partisan leap from a routine inter-branch kerfuffle to all-out war — impeachment of a duly elected president, with only about ten months to go before voters could otherwise decide President Trump’s fate for themselves. In the short term, the House has bolstered the president’s claim that impeachment is a political stunt, even though the House may well be entitled to at least some of the information being withheld. In the long term, the trivialization of impeachment will do lasting damage to American governance.